Lois Lerner emails reveal gaping open-records loophole

The Lois G. Lerner emails released this month revealed a potentially huge loophole in federal open-records practices when an IRS tech staffer acknowledged that the agency doesn’t regularly store — and never checks — instant message chats as official government records.

Analysts say there is no question that the Internal Revenue Service and all other federal agencies should be storing chats and even cellphone text messages that may constitute official government documents, but a check by The Washington Times suggests that hardly any agency is doing so.

Of 17 agencies surveyed by The Times, just two said they had policies requiring instant messages to be stored as official, searchable records.

One agency said it doesn’t allow use of text or chat, six agencies said they didn’t have specific policies or were working on language to cover modern technology, and another eight agencies did not provide any answers about their policies despite multiple requests.

“We are disappointed, though not surprised, to hear that federal agencies don’t have policies in place to protect this type of information from being destroyed,” said Emily Grannis, a legal fellow at the Reporters Committee for Freedom of the Press.

“Texts, instant messages, voice mails and other quick, informal types of communications have long been considered public records under state and federal freedom of information laws, and have become so ubiquitous that often those are the only records we have of how decisions are made,” Ms. Grannis said. “The government should take extra care to ensure those records are preserved instead of casually allowing them to disappear.”

Open-records laws require federal departments and agencies to store key documents that show official decision-making. The practice preserves the records for contemporaneous and future research on how the government works. The laws were drawn up when all records were put on paper, but have been updated to include electronic communications.

Agencies appear to have adopted rules for handling email, but even that technology is being supplanted. Government officials are scrambling to keep up.

The National Archives and Records Administration, which is responsible for preserving federal records, recommends that documents that aren’t stored automatically, such as text messages, be forwarded, pasted into emails or otherwise memorialized.

The same rules apply to phone conversations and voice mail messages, though it’s unclear how many government employees are taking and storing notes of those communications, either.

The issue of whether instant messages and texts from mobile devices are being stored has been percolating for years among those charged with thinking about government transparency and open-records requests.

Last week, however, a release of emails showed that Ms. Lerner asked whether instant-message chats were stored. The former IRS employee at the center of the tea party targeting scandal raised the question in the middle of what appeared to be a discussion about how to hide information from Congress.

A tech staffer replied that each person could change settings to determine whether conversations on the IRS chat system, the Office Communications Server, were stored automatically, though the default was not to store chats. He also said the document search tool didn’t include chats that were stored, so those messages wouldn’t come up in open-records requests.

“I was cautioning folks about email and how we have had several occasions where Congress has asked for emails and there has been an electronic search for responsive emails — so we need to be cautious about what we say in emails,” Ms. Lerner wrote. “Someone asked if OCS conversations were also searchable — I don’t know, but told them I would get back to them. Do you know?”

The staffer replied: “OCS messages are not set to automatically save as the standard; however the functionality exists within the software. That being said the parties involved in an OCS conversation can copy and save the contents of the conversations to an email or file.”

She went on to say: “To date OCS conversations are not specifically identified as part of the Electronic Data Request (EDR) for information, however, if one of the parties save the conversation as an email or file they would become part of the electronic search.”

The IRS didn’t respond to repeated requests for comment on its handling of those electronic records.

The issue also has popped up in relation to the Environmental Protection Agency, where a conservative researcher is trying to obtain computer chat and cellphone text messages from EPA Administrator Gina McCarthy, arguing that they constitute official records.

Christopher Horner, the researcher battling the EPA, said some employees are using instant message chats instead of email as a way to avoid scrutiny.

“The failure to search for text or other instant messages, in systems provided by the taxpayer specifically for work-related correspondence, is endemic to appointees and career bureaucrats alike,” Mr. Horner said.

He said the open-records process has a fundamental flaw: It relies on government employees to police themselves, and requests for documents usually involve those who have the most to hide.

“FOIA, as well as congressional oversight requests, operate on an honor system. Which requires people of honor. So you see the trouble this begs,” he said.

Of the 16 agencies surveyed by The Times, only two appeared to be mostly in compliance. The Health and Human Services Department said its computer systems don’t have instant chat functions, but its policy indicates that instant messages and text messages should be treated the same as email.

Likewise, the CIA said it stores instant messages and follows applicable laws when responding to records requests from the public or Congress.

More common were agencies that said they try to comply with federal law. Treasury Department officials, for example, said they “take seriously” their duty to the law, though they didn’t explain specifically what their policy was.

The National Security Agency would not disclose whether text messages or computer chats were stored but said any records that were kept are searched as part of open-records requests.